Redevelopment Agency v. Goodman

• Court: California Court of Appeals
• Writing for the Court: RATTIGAN, Acting P.J., and CHRISTIAN
• Citation: Redevelopment Agency v. Goodman, 125 Cal.Rptr. 818, 53 Cal.App.3d 424 (Cal. App. 1975)
• Decision Date: 13 November 1975
• Parties: REDEVELOPMENT AGENCY OF the CITY AND COUNTY OF SAN FRANCISCO, a public body, corporate and politic, Plaintiff and Respondent, v. Mervyn J. GOODMAN and Leona G. Leibert et al., Defendants and Appellants. REDEVELOPMENT AGENCY OF the CITY AND COUNTY OF SAN FRANCISCO, a public body, corporate and politic, Plaintiff and Respondent, v. Mervyn J. GOODMAN and Leona G. Leibert et al., Defendants and Appellants; Thomas C. SCANLON, City Treasurer, et al., Real Parties in Interest and Respondents. Civ. 36155, 36433.

Page 818

125 Cal.Rptr. 818

53 Cal.App.3d 424

REDEVELOPMENT AGENCY OF the CITY AND COUNTY OF SAN FRANCISCO, a public body, corporate and politic, Plaintiff and Respondent, v. Mervyn J. GOODMAN and Leona G. Leibert et al., Defendants and Appellants.

REDEVELOPMENT AGENCY OF the CITY AND COUNTY OF SAN FRANCISCO, a public body, corporate and politic, Plaintiff and Respondent, v. Mervyn J. GOODMAN and Leona G. Leibert et al., Defendants and Appellants;

Thomas C. SCANLON, City Treasurer, et al., Real Parties in Interest and Respondents.

Civ. 36155, 36433.

Court of Appeal, First District, Division 4, California.

Nov. 13, 1975.

Franklin A. Dill and George DeLew, San Francisco, for defendants and appellants.

Rogers, Vizzard & Tallett, San Francisco, for plaintiff and respondent Redevelopment Agency of the City and County of San Francisco.

Thomas M. O'Connor, City Atty., Daniel Collins, Deputy City Atty., City and County of San Francisco, for respondents Scanlon et al.

KEANE, ^* Associate Justice.

These are combined appeals. In 1 Civil 36155, appellants Mervyn J. Goodman and Leona G. Leibert ¹ appeal from the trial court's order denying their motion for an order determining interest on a condemnation judgment rendered against them and in favor of respondent Redevelopment Agency of the City and County of San Francisco (hereafter 'respondent agency'). In 1 Civil 36433, appellants appeal from an order denying them recovery of interest actually earned on funds paid into court pursuant to the judgment, which funds were deposited with respondent clerk, respondent treasurer, and respondent controller of the City and County of San Francisco (hereafter 'respondent county officials').

Respondent agency is the sole respondent party in 1 Civil 36155, and respondent county officials are the respondent parties in 1 Civil 36433.

Respondent agency obtained a judgment and order of condemnation on November 10, 1970, in which the sum of $320,000 was awarded for the taking of certain real property owned by appellants in San Francisco. A portion of the award amounting to $4,328 was allocated to the claim of another condemnee. The judgment included no provision for interest.

Respondent agency paid the entire amount of the award into court on November 10, 1970. A further sum of $111.20 for appellants' costs was paid into court on November 25, 1970. Respondent clerk, upon receiving these sums on behalf of the court, remitted them to respondent treasurer, who invested them in interest-bearing bank accounts.

Appellants, meanwhile, contested the condemnation judgment on appeal. They challenged respondent agency's efforts at compliance with applicable federal law, the necessity of the taking, and the adequacy of the compensation. The judgment was affirmed by this court.

In June 1972, while the appeal was still pending, respondent agency applied to the trial court for an order of immediate possession of the subject property pursuant to Code of Civil Procedure section 1254. ² The order for possession was granted on June 30, 1972, conditioned upon payment into court by respondent agency of a further $50,000 to serve as security for appellants' potential damages and costs. The order was appealed, and possession by respondent agency was stayed by a writ of supersedeas issued by this court on September 13, 1972. Thereafter, the order was affirmed and the writ terminated.

On June 1, 1974, following the affirmance of the judgment of condemnation and the filing of the remittitur, appellants withdrew their award and costs pursuant to the trial court's order of disbursement.

On August 2, 1974, appellants noticed a motion for an order determining interest on the judgment. The trial court's order denying the motion was filed on August 29, 1974, and is the subject of the appeal in 1 Civil 36155.

On October 15, 1974, while the appeal in 1 Civil 36155 was pending, appellants obtained a court order requiring respondent county officials to show cause why interest earned on the funds deposited into court pursuant to the condemnation judgment should not be paid to appellants. It was contended that the funds, which had been invested in bank accounts by respondent officials, had earned interest at an average rate of 6.15 percent per annum. The trial court issued an order denying appellants' recovery of this interest. This order, filed on December 3, 1974, is the subject of the appeal in 1 Civil 36433.

Respondents do not raise the question of appealability of the trial court's orders. However, since this is jurisdictional, the reviewing court must, on its own motion, dismiss a purported appeal from a nonappealable order. (6 Witkin, Cal.Proc. (2d ed. 1971) Appeal, § 31, p. 4046.)

Code of Civil Procedure section 904.1(b) permits an appeal to be taken from an order made after rendition of an appealable judgment. However, it has been held that no such order is appealable unless it somehow affects the judgment by either enforcing it or staying its execution. (6 Witkin, Cal.Proc. (2d ed. 1971) Appeal, § 81, p. 4092; 4 Cal.Jur.3d, Appellate Review, § 26, pp. 59--60.) Where the order leaves the judgment intact and neither adds to it nor subtracts from it, the order is not appealable. (Hixson v. Hixson (1956) 146 Cal.App.2d 204, 206, 303 P.2d 607; see Carroll v. Civil Service Commission (1970) 11 Cal.App.3d 727, 733, 90 Cal.Rptr. 128.)

On the other hand, any order relating to the enforcement of a judgment or the refusal to grant such an order is appealable. (Baum v. Baum (1959) 51 Cal.2d 610, 614--615, 335 P.2d 481; 6 Witkin Cal.Proc. (2d ed. 1971) Appeal, § 82, pp. 4093--4094; 4 Cal.Jur.3d, Appellate Review, § 58, at pp. 98--99.) While this rule has chiefly been applied to orders concerning execution and the like, it may also include an attempt to obtain interest on a judgment. An order relating to an attempt to obtain interest is similar to a post-judgment order determining costs. Such an order is appealable. (6 Witkin, Cal.Proc. (2d ed. 1971) Appeal, § 83, p. 4094.)

Metropolitan Water Dist. v. Adams (1948) 32 Cal.2d 620, 197 P.2d 543, suggests that the orders at issue here are appealable. In that case, a condemning agency paid funds into court pending rendition of condemnation judgments. After the judgments were rendered, the funds were withdrawn by the condemnees. The condemnor then sought recovery of interest earned on the funds while on deposit in the county treasury prior to their withdrawal. The trial court's orders denying recovery were appealed. The orders were reversed, and no consideration was given to the possibility that they might have been nonappealable. (See also Vallejo, etc., R.R. Co. v. Reed Orchard Co. (1918) 177 Cal. 249, 251, 170 P. 426.)

We conclude that the orders denying interest in the case at bench are appealable.

Appellants contend that they have unconstitutionally been deprived of interest on their share of the condemnation award and deposit for costs by the operation of Code of Civil Procedure sections 1255b ³ and 1254, subdivision (f). ⁴ These statutes, when read together, create the following scheme: A condemnation award begins to draw interest when the judgment is entered; it ceases to do so when the condemnor pays the award and security into court in order to obtain immediate possession of the subject property pursuant to section 1254; the award may not be withdrawn by the condemnee unless he abandons all objections to the condemnation except as to the amount of compensation. Therefore, the condemnee may not appeal on the issue of the condemnor's right to take unless he is willing to sacrifice interest on his award.

Appellants contend that this scheme is unconstitutional in two respects: It denies a condemnee just compensation for the taking of his property and deprives him of due process and equal protection of the law.

The first of these constitutional arguments is premises on the assertion that just compensation, as guaranteed by the federal and state Constitutions, necessarily includes interest for any period after the rendition of judgment during which the condemnee is prevented from obtaining his award. This generalization is too broad. It is probably correct that interest Is constitutionally required where necessary to produce an award equivalent to the loss sustained by the condemnee. (See 36 A.L.R.2d 413 et seq.) Ordinarily, such is the case where the condemnee is deprived of possession of the subject property before he receives his award; interest is then necessary as compensation for loss of use. (5 Witkin, Summary of California Law (8th ed. 1974) Constitution Law, § 567, p. 3867; see Youngblood v. Los Angeles County Flood Control Dist. (1961) 56 Cal.2d 603, 611--612, 15 Cal.Rptr. 904, 364 P.2d 840.) In the case at bench, however, the fact that appellants have lost interest on their award is due to their own conduct. The amount of the award with costs was deposited into court for appellants' benefit immediately upon rendition of the judgment. It could have been withdrawn at once had they not elected to pursue and appeal. Therefore, they should not be heard to complain that the loss of interest has deprived them of just compensation.

This conclusion is fortified by Pacific Gas & Electric Co. v. Superior Court (1973) 33 Cal.App.3d 321, 109 Cal.Rptr. 10. There, the condemnor sought mandamus to compel the superior court to grant an order authorizing immediate possession of the subject properties pursuant to Code of Civil Procedure section 1254 pending conclusion of the landowners' appeals from a judgment of condemnation. The landowners, appearing as real parties in interest, contended that to apply section 1254 in this fashion would deny them just compensation. They argued that since just compensation is not made to a landowner until he can take possession of his award, it is unconstitutional to withhold the award, pursuant to section 1254, subdivision (f), from a landowner who appeals concerning such...